The Role of the Judge In Our Society is Like the Song “Blowing In The Wind”

Anytime that The Supreme Court of the United States, The Court of Appeals of Maryland, The U.S. Senate, the mainstream print media here and abroad and all sorts of Bloggers are talking about or at least around the same issue, change must be coming to the conventional wisdom on that issue. The role of the judge in our state and country is under review and in flux. What that role will be in the future as the Old Peter, Paul, and Mary song proclaimed is “Blowing in the Wind .”

The Court of Appeals of Maryland has recently wrestled with the issue indirectly when it dealt with some issues arising as a result of the creation of various “Problem -solving Courts” in our state. More on that in a future column. It will no doubt affect not only how our courtrooms operate but who is attracted to seek the Bench to preside over those courtrooms.

A more headline –grabbing glimpse into the changing legal culture has been on display in two U.S. Supreme Court Opinions in the last 60 days. On June 8, 2009, The Supreme Court issued its opinion in Hugh M. Caperton, et al. v. A.T. Massey Coal Company, Inc. That case dealt with the issue of when and more importantly why a judge should recuse himself or herself in a particular case. More on that later.

At about the same time the U.S. Supreme Court’s Opinion in the case which became known as “The New Haven Firefighter’s Case” to those of us “Sotomayer Confirmation Hearing Junkies,” Ricci v The City of New Haven Fire Department was being discussed arguably ad nauseum as a basis for criticism of Supreme Court Justice- Designate Sonia Sotomayor. Judge Sotomayer joined a majority on a 3-judge Panel from the 2nd Federal Circuit on which she now serves in a 134 word Per Curiam Opinion reaching a different result than that reached by a 5-4 majority on the U.S. Supreme Court this past June. What was overlooked or at least brushed by in the express as well as implicit criticism of both the substance and the length of that Opinion was that the Opinion specifically referenced and in effect adopted by stating, “We affirm, for the reasons stated in the thorough thoughtful and well reasoned opinion of the court below.” (Emphasis added)

It is unclear what the real basis for the criticism of the brevity of the 2nd Circuit Panel Majority’s Opinion is. That Opinion as a practical matter, after incorporating the U.S. District Court Opinion, is a 78 page “well reasoned opinion “ and cites as the grounds for its decision, the then controlling precedents from the Federal 2nd Circuit based on previous U.S. Supreme Court decisions. The Supreme Court in reversing that decision by a 5-4 majority found it necessary to add an additional test and analysis to its previous jurisprudence on the subject in order to accomplish their public policy-making and changing purpose. As the nominee pointed out, The Supreme Court can do that, The 2nd Circuit Court cannot.

Unless Judge Sonia Sotomayor’s critics on the right would like her to feel less constrained by precedent in formulating the substance of her opinions as well as more long –winded and either intellectually dishonest or at least disingenuous stylistically by “authoring” an opinion as her own when in fact a U.S. District Court Trial Judge has fully articulated her views as well if not better than she could on her own, it is difficult to understand their criticism. It appears to be a product of some politicians, talking-heads and advocacy groups not having enough to talk or write about leading up to and during her Confirmation Hearing and/or pumping their base for money or votes.

As a result of Judge Sotomayer’s critics pursuing this theme well beyond its utility, The Hearing lost its entertainment value early on and its potential educational purpose never materialized. In any case, notwithstanding that criticism, it appears that Judge Sotomayer discharged her role as a Federal Appellate Court Judge, which is not the same as a Supreme Court Justice properly and with distinction in all of her cases including the Ricci case.

Not so, with Justice Brent Benjamin who the U.S. Supreme Court ruled also by a 5-4 majority should have recused himself in the case of Hugh M. Caperton, et al. v. A. T. Massey Coal Company al. Actually the apparent closeness of that decision is misleading at an important level. The division between the majority and the dissenters was essentially on the issue of whether Justice Benjamin should have been disqualified should have risen to a constitutional level. None of the dissenting justices, Chief Justice Roberts, who authored the Dissenting Opinion for himself, Justices Scalia, Thomas, and Alito actually defended West Virginia Justice Benjamin’s refusal to recuse. Rather they resorted to self-serving (for Judges) ad hominim declarations such as the judge –made law that “there is a presumption of honesty and integrity in those serving as adjudicators” and my favorite, “We should not even by inadvertence impute to judges a lack of firmness, wisdom or honor.”

I think it is fair to say that the “presumption of honesty and integrity in those serving as adjudicators” is unfortunately for us judges not universally applied except by judges to each other. As to the admonition not to even inadvertently impute to judges a lack of firmness, wisdom or honor, that too is not applied without notable exceptions even by the Bar, who when they appeal a judge’s decision are at least implicitly questioning the judge’s “wisdom” on certain select legal issues . Furthermore the very existence of The Maryland Judicial Disabilities Commission and its and its entire developmental history and experience suggest that taking the pronouncements of these U.S. Supreme Court presumptions and admonitions in the light most favorable to Justices who issued them, that they were born in a simpler and certainly a more authoritarian time and legal culture than the one we live in today.

The simple glaring fact in the Caperton v. Massey case is that the West Virginia Code of Judicial Conduct modeled after the ABA code from which it was adopted requires a judge to disqualify himself or herself in a proceeding which the judges impartially might reasonably be questioned.

I lack the space her to repeat the undisputed facts of the case for recusal which was presented to Justice Benjamin and to other members of The West Virginia Supreme Court and to detail the political , financial and cultural context in which they took place. They are fully set forth in Hugh M. Caperton, et al. v. A. T. Massey Coal Company al, 129 S. CT 2252, 173 L. Ed. 2nd 1208 (June 8, 2008) They involved indirect campaign contributions by the CEO of Massey through various organizations supporting Justice Benjamin’s campaign against incumbent Justice McGraw totaling over $3 million dollars.

Under these facts, this writer simply cannot comprehend even after reading the dissenting opinion of the U.S. Supreme Court which defended West Virginia Justice Benjamin’s Refusal to recuse in the Caperton case, how any judge or for that matter any reasonably intelligent person would not summarily conclude that Justice Benjamin’s impartiality “might reasonably be questioned.” This is a very minimal and easy to understand standard. That having been said, if Justice Benjamin had recognized his duty and recused pursuant to the clear mandate of the West Virginia Code of Judicial Conduct, then the debate in the Supreme Court of the United Sates over whether his duty to do so was constitutional in nature would not have been necessary. The fact that it was necessary and that it was only recognized by a 5-4 majority unfortunately documents an isolation of at least the West Virginia Supreme Court Justices and the U.S. Supreme Court Justices who were willing to let their conduct pass from the reality that I know we in Maryland live in the 21st Century.

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